Perkins v. Social Security Administration, Commissioner

Filing 14

MEMORANDUM OPINION. Signed by Judge Sharon Lovelace Blackburn on 2/22/16. (SMH)

FILED
2016 Feb-22 PM 03:45
U.S. DISTRICT COURT
N.D. OF ALABAMA

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF ALABAMA
JASPER DIVISION
CHERYL L. PERKINS,
Plaintiff,
vs.
CAROLYN W. COLVIN, Acting
Commissioner of Social Security,
Defendant.

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CASE NO. 6:14-CV-1617-SLB

MEMORANDUM OPINION
Plaintiff Cheryl L. Perkins brings this action pursuant to 42 U.S.C. § 405(g), seeking
review of the Commissioner of Social Security’s final decision denying her application for
a period of disability and disability insurance benefits [DIB]. Upon review of the record and
the relevant law, the court is of the opinion that the Commissioner’s decision is due to be
affirmed.
I. PROCEDURAL HISTORY
On February 14, 2013, Ms. Perkins protectively filed a Title II application for a period
of disability and DIB, alleging that she became unable to work on April 6, 2010. (Doc. 7-3
at R.22; doc. 7-6 at R.200.)1 She reported that was unable to work because of sacroiliac joint
syndrome, irritable bowel syndrome [IBS], interstitial cystitis [IC], polycystic ovary

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Reference to a document number, [“Doc.”], refers to the number assigned to each
document as it is filed in the court’s record. Reference to a page numbers in the
Commissioner’s record, [“R.”], refers to the page number assigned to the record by the
Commissioner.

syndrome [PCOS], pelvic congestion syndrome [PCS], anxiety attacks, depression, high
blood pressure, acid reflux, and varicose veins in her pelvic area. (Doc. 7-7 at R.246.)
The Commissioner denied her application initially, and Ms. Perkins requested a
hearing before an Administrative Law Judge [ALJ]. (Doc. 7-5 at R.93, R.99.) The hearing
before the ALJ was held on January 6, 2014. (Doc. 7-3 at R.22.)
After the hearing, the ALJ issued an unfavorable decision on February 26, 2014.
(Doc. 7-3 at R.22-35.) Ms. Perkins asked the Appeals Council to review the ALJ’s decision,
and she submitted additional evidence. (Id. at R.10, R.12-18.) The Appeals Council denied
Ms. Perkins’s request for review of the ALJ decision, stating that it “found no reason under
[its] rules to review the [ALJ’s] decision.” (Id. at 1.) Therefore, “the [ALJ’s] decision is the
final decision of the Commissioner of Social Security in [Ms. Perkins’s] case.” (Id.)
Ms. Perkins filed an appeal in this court on August 19, 2014. (Doc. 1.)
II. STANDARD OF REVIEW
In reviewing claims brought under the Social Security Act, this court’s role is a
narrow one, “limited to an inquiry into whether there is substantial evidence to support the
findings of the Commissioner and whether the correct legal standards were applied.” Wilson
v. Barnhart, 284 F.3d 1219, 1221 (11th Cir. 2002); see also Lamb v. Bowen, 847 F.2d 698,
701 (11th Cir. 1988). The court gives deference to factual findings and reviews questions
of law de novo. Cornelius v. Sullivan, 936 F.2d 1143, 1145 (11th Cir. 1991). The court
“may not decide the facts anew, reweigh the evidence, or substitute [its] judgment for that

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of the [Commissioner], rather [it] must scrutinize the record as a whole to determine if the
decision reached is reasonable and supported by substantial evidence.” Martin v. Sullivan,
894 F.2d 1520, 1529 (11th Cir. 1990) (quoting Bloodsworth v. Heckler, 703 F.2d 1233, 1239
(11th Cir.1983)) (internal quotations and other citation omitted). “The Commissioner’s
factual findings are conclusive if supported by substantial evidence.” Wilson, 284 F.3d at
1221 (citing Martin v. Sullivan, 894 F.2d 1520, 1529 (11th Cir. 1990); Allen v. Bowen, 816
F.2d 600, 602 (11th Cir. 1987)). “Substantial evidence” is “more than a scintilla and is such
relevant evidence as a reasonable person would accept as adequate to support a conclusion.”
Winschel v. Commissioner of Social Sec., 631 F.3d 1176, 1178 (11th Cir. 2011) (internal
quotations and citations omitted). “No . . . presumption of validity attaches to the
[Commissioner’s] conclusions of law.” Wiggins v. Schweiker, 679 F.2d 1387, 1389 (11th Cir.
1982).
III. DISCUSSION
A. THE FIVE-STEP EVALUATION
The regulations require the Commissioner to follow a five-step sequential evaluation
to determine whether a claimant is eligible for DIB. See 20 C.F.R. § 404.1520; see also
Bowen v. City of New York, 476 U.S. 467, 470 (1986). “[A]n individual shall be considered
to be disabled for purposes of [determining eligibility for DIB benefits] if he is unable to
engage in any substantial gainful activity by reason of any medically determinable physical
or mental impairment which can be expected to result in death or which has lasted or can be

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expected to last for a continuous period of not less than twelve months.” 42 U.S.C. §
1382c(a)(3)(A). The specific steps in the evaluation process are as follows:
1. Substantial Gainful Employment
First, the Commissioner must determine whether the claimant is engaged in
“substantial gainful employment.” Bowen v. Yuckert, 482 U.S. 137, 137 (1987). The
regulations define “substantial gainful activity” as “work activity that is both substantial and
gainful.”2 20 C.F.R. § 404.1572. If the claimant is working and that work is substantial
gainful activity, the Commissioner will find that the claimant is not disabled, regardless of
the claimant’s medical condition or her age, education, and work experience. 20 C.F.R. §
404.1520(b). “Under the first step, the claimant has the burden to show that she is not

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The regulation provides:

(a) Substantial work activity. Substantial work activity is work activity that
involves doing significant physical or mental activities. Your work may be
substantial even if it is done on a part-time basis or if you do less, get paid less,
or have less responsibility than when you worked before.
(b) Gainful work activity. Gainful work activity is work activity that you do for
pay or profit. Work activity is gainful if it is the kind of work usually done for
pay or profit, whether or not a profit is realized.
(c) Some other activities. Generally, we do not consider activities like taking
care of yourself, household tasks, hobbies, therapy, school attendance, club
activities, or social programs to be substantial gainful activity.
20 C.F.R. § 404.1572(a)-(c).
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currently engaged in substantial gainful activity.” Reynolds-Buckley v. Commissioner of
Social Sec., 457 Fed. Appx. 862, 863 (11th Cir. 2012).3
The ALJ found that Ms. Perkins had not engaged in substantial gainful activity during
the period from her alleged onset date, April 6, 2010, through the date of the ALJ’s decision,
February 26, 2014. (Doc. 7-3 at R.24, R.35.)
2. Severe Impairments
If the claimant is not engaged in substantial gainful activity, the Commissioner must
next determine whether the claimant suffers from a severe impairment or combination of
impairments that significantly limits her physical or mental ability to do basic work activities.
20 C.F.R. § 404.1520(a)(4)(ii), (c). “[A] ‘physical or mental impairment’ is an impairment
that results from anatomical, physiological, or psychological abnormalities which are
demonstrable by medically acceptable clinical and laboratory diagnostic techniques.” 42
U.S.C. § 1382c(a)(3)(D). The regulations provide: “[I]f you do not have any impairment or
combination of impairments which significantly limits your physical or mental ability to do
basic work activities, [the Commissioner] will find that you do not have a severe impairment
and are, therefore, not disabled.” 20 C.F.R. § 404.1520(c). “An impairment can be
considered as not severe only if it is a slight abnormality which has such a minimal effect on

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Eleventh Circuit Rule 36-2 provides, in pertinent part, “An opinion shall be
unpublished unless a majority of the panel decides to publish it. Unpublished opinions are
not considered binding precedent, but they may be cited as persuasive authority.” 11th Cir.
R. 36-2 (emphasis added).
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the individual that it would not be expected to interfere with the individual’s ability to work,
irrespective of age, education, or work experience.” Brady v. Heckler, 724 F.2d 914, 920
(11th Cir. 1984); see also 20 C.F.R. § 404.1521(a). A claimant may be found disabled based
on a combination of impairments even though none of the individual impairments alone are
disabling. Walker v. Brown, 826 F.2d 996, 1001 (11th Cir. 1985); see also 20 C.F.R. §
404.1523. A claimant has the burden to show that she has a severe impairment or
combination of impairments. Reynolds-Buckley, 457 Fed. Appx. at 863.
The ALJ found that Ms. Perkins had severe impairments of –
a history of endometriosis/pelvic floor myalgia status post cystoscopy with
hydro-distention and hysteroscopy with resection of uterine septum and
laparoscopy with surgical excision of endometriosis in May 2010, pelvic
congestion syndrome, status post laparoscopic excision of pelvic endometriosis
and supracervical hysterectomy and bilateral salpingo-oophorotomy in August
2012, interstitial cystitis (IC), a history of sacroiliac joint syndrome, and
obesity.
(Doc. 7-3 at 24.) Also, the ALJ found Ms. Perkins’s mental impairments of anxiety and
depression were not severe. (Id.)
3. The Listings
If the claimant has a severe impairment, the Commissioner must then determine
whether the claimant’s impairment meets the duration requirement4 and whether it is
equivalent to any one of the listed impairments, which are impairments that are so severe as

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“Unless your impairment is expected to result in death, it must have lasted or must
be expected to last for a continuous period of at least 12 months. We call this the duration
requirement.” 20 C.F.R. § 416.909.
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to prevent an individual with the described impairment from performing substantial gainful
activity. 20 C.F.R. § 404.1520(a)(4)(iii), (d)-(e); see 20 C.F.R. pt. 404, Subpart P, Appendix
1 [The Listings]. If the claimant’s impairment meets or equals a Listing, the Commissioner
must find the claimant disabled, regardless of the claimant’s age, education, and work
experience. 20 C.F.R. § 404.1520(d). The claimant has the burden of proving that her
impairment meets or equals the criteria contained in one of the Listings. Reynolds-Buckley,
457 Fed. Appx. at 863.
The ALJ found that Ms. Perkins “did not have an impairment or combination of
impairments that met or medically equaled the severity of one of the listed impairments in
20 C.F.R. Part 404, Subpart P, Appendix 1.” (Doc. 7-3 at R.26.)
4. Residual Functional Capacity and Past Relevant Work
If the impairment does not meet or equal the criteria of a Listing, the claimant must
prove that her impairment prevents her from performing her past relevant work. See 20
C.F.R. § 404.1520(a)(4)(iv), (f). At step four, the Commissioner “will first compare [her]
assessment of [the claimant’s] residual functional capacity [RFC] with the physical and
mental demands of [her] past relevant work. 20 C.F.R. § 404.1560(b). Past relevant work
is work that [the claimant has] done within the past 15 years, that was substantial gainful
activity, and that lasted long enough for her to learn to do it. 20 C.F.R. § 404.1560(b)(1).
If the claimant is capable of performing her past relevant work, the Commissioner will find
she is not disabled. 20 C.F.R. § 404.1520(e). The claimant bears the burden of establishing

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that her impairment prevents her from performing past work. Reynolds-Buckley, 457 Fed.
Appx. at 863.
The ALJ found:
After careful consideration of the entire record, the undersigned finds
that the claimant has the residual functional capacity to perform less than the
full range of light work as defined in 20 C.F.R. 404.1567(b).5 She can
occasionally lift and/or carry up to 20 pounds and frequently lift and/or carry
up to 10 pounds. She can stand and/or walk in combination, with normal
breaks, for at least 6 hours during an 8-hour workday and sit, with normal
breaks, for up to 8 hours during an 8-hour workday. The claimant can
occasionally climb ramps and stairs and she should never climb ladders, ropes,
or scaffolds. The claimant can frequently balance and occasionally stoop,
kneel, crouch, and crawl. She should avoid concentrated exposure to extreme
heat, extreme cold, wetness, humidity, and working in areas of vibration. The
claimant should avoid all exposure to industrial hazards, including working at
unprotected heights and working [in] close proximity to moving dangerous
machinery.
(Doc. 7-3 at R.26 [footnote added].) Based on her finding regarding Ms. Perkins’s RFC and
the testimony of a vocational expert [VE], the ALJ found that Ms. Perkins was able to
perform her past relevant work as a loan processor and an office clerk. (Id. at R.35.)

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Section 416.967(b) provides:

Light work involves lifting no more than 20 pounds at a time with frequent
lifting or carrying of objects weighing up to 10 pounds. Even though the
weight lifted may be very little, a job is in this category when it requires a good
deal of walking or standing, or when it involves sitting most of the time with
some pushing and pulling of arm or leg controls. To be considered capable of
performing a full or wide range of light work, you must have the ability to do
substantially all of these activities. . . .
20 C.F.R. § 416.967(b).
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Therefore, the ALJ found that Ms. Perkins had not been under a disability at any time
from April 6, 2010, the alleged onset date, through February 26, 2014, the date of her
decision. (Id.)
5. Other Work in the National Economy
If the claimant establishes that she is unable to perform her past relevant work, the
Commissioner must show that the claimant – in light of her RFC, age, education, and work
experience – is capable of performing other work that exists in substantial numbers in the
national economy. Reynolds-Buckley, 457 Fed. Appx. at 863; see also 20 C.F.R. §
404.1520(c)(1). The regulations provide:
(1) If we find that your residual functional capacity does not enable you to do
any of your past relevant work . . ., we will use the same residual functional
capacity assessment when we decide if you can adjust to any other work. We
will look at your ability to adjust to other work by considering your residual
functional capacity and the vocational factors of age, education, and work
experience, as appropriate in your case. . . . Any other work (jobs) that you
can adjust to must exist in significant numbers in the national economy (either
in the region where you live or in several regions in the country).
(2) In order to support a finding that you are not disabled at this fifth step of
the sequential evaluation process, we are responsible for providing evidence
that demonstrates that other work exists in significant numbers in the national
economy that you can do, given your residual functional capacity and
vocational factors. We are not responsible for providing additional evidence
about your residual functional capacity because we will use the same residual
functional capacity assessment that we used to determine if you can do your
past relevant work.
Id. (c)(1)-(2).

If the claimant is not capable of performing such other work, the

Commissioner must find the claimant is disabled. 20 C.F.R. § 404.1520(g).

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Because she found that Ms. Perkins was able to perform her past relevant work, the
ALJ did not consider whether Ms. Perkins was capable of adjusting to other work.
B. ISSUES ON APPEAL
Ms. Perkins states her issues on appeal as follows:
1. Whether the ALJ erred by failing to follow her finding[ ] that
Claimant had a residual functional capacity to perform less than the full range
of light work as defined in 20 C.F.R. 404.1567(b) when the hypothetical
question posed to the vocational expert was [she] should consider that the
claimant could perform a full range of light work.
2. Whether the Appeals Council erred by not remanding the claim to
the [ALJ] since the Appeals Council received evidence of excessive breaks
that supplemented the evidence of excessive breaks testified to by the
Claimant.
3. Whether the ALJ erred by not setting forth reasons to ignore the
testimony of the vocational expert that if excessive breaks were required
during an eight hour work day that no jobs would be available.
(Doc. 10 at 1.) For the reasons set forth below, the court finds that the decision to deny Ms.
Perkins’s claim for a period of disability and DIB is due to be affirmed.
1. Vocational Expert Testimony
“A vocational expert is an expert on the kinds of jobs an individual can perform based
on his or her capacity and impairments. When the ALJ uses a vocational expert, the ALJ will
pose hypothetical question(s) to the vocational expert to establish whether someone with the
limitations that the ALJ has previously determined that the claimant has will be able to secure
employment in the national economy.” Phillips v. Barnhart, 357 F.3d 1232, 1240 (11th Cir.
2004). “[I]n order for a VE’s testimony to constitute substantial evidence, the ALJ must pose
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a hypothetical question which comprises all of the claimant’s impairments.” Id. n.7 (quoting
Jones v. Apfel, 190 F.3d 1224, 1229 (11th Cir. 1999)(citing McSwain v. Bowen, 814 F.2d
617, 619-20 (11th Cir. 1987))).
Ms. Perkins alleges two errors with regard to the ALJ’s use of a vocational expert:
(1) she contends the ALJ’s hypothetical to the VE did not accurately describe her limitations
because the hypothetical to the VE asked her to assume Ms. Perkins could perform a full
range of light work, and (2) she contends the ALJ erred in failing to follow the VE’s
testimony that she could not perform her past relevant work due to her need for frequent
breaks.
With regard to Ms. Perkins’s RFC, the ALJ found the following limitations:
1. “She can occasionally lift and/or carry up to 20 pounds and
frequently lift and/or carry up to 10 pounds.” (Doc. 7- at R.26.)
2. “She can stand and/or walk in combination, with normal breaks, for
at least 6 hours during an 8-hour workday and sit, with normal breaks, for up
to 8 hours during an 8-hour workday.” (Id.)
3. “The claimant can occasionally climb ramps and stairs and she
should never climb ladders, ropes, or scaffolds.” (Id.)
4. “The claimant can frequently balance and occasionally stoop, kneel,
crouch, and crawl.” (Id.)
5. “She should avoid concentrated exposure to extreme heat, extreme
cold, wetness, humidity, and working in areas of vibration.” (Id.)
6. “The claimant should avoid all exposure to industrial hazards,
including working at unprotected heights and working [in] close proximity to
moving dangerous machinery.” (Id.)

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(Doc. 7-3 at R.26.) The ALJ’s included each of these limitations in her hypothetical to the
VE:
Q. [ALJ] . . . Dr. Euto, I’m going to ask you to assume, for
hypothetical purposes number one, a hypothetical individual of the same age,
education and work experience as the Claimant. I’m going to ask you to
further assume that such a hypothetical individual could [1] occasionally lift
and/or carry up to 20 pounds and frequently lift and/or carry up to 10 pounds.
[2] She could stand and/or walk with normal breaks for at least six hours
during an eight-hour workday and she could sit with normal breaks for up to
eight hours during an eight-hour workday; [3] could occasionally climb ramps
and stairs and should never climb ladders, ropes or scaffolds. [4] She could
frequently balance and occasionally stoop, kneel, crouch and crawl. [5] She
should avoid concentrated exposures to the extreme heat, extreme cold,
wetness, humidity and working in areas of vibration. [6] Should avoid
exposure to industrial hazardous including working at unprotected heights,
working in close proximity to moving, dangerous machinery. Given those
functional limitations, could such a hypothetical individual perform any of
[Ms. Perkins’s] past work as it was actually or customarily performed?
A. [VE] Yes, Your Honor, the loan processor [and] the office clerk.
Q. Would these allow for her work to be performed as actually
performed, generally performed or both?
A. Both, Your Honor.
(Doc. 7-3 at R.71.)6 Because the hypothetical contained all the limitations on Ms. Perkins’s
ability to work found by the ALJ, the VE’s testimony provides substantial evidence
supporting the ALJ’s decision that Ms. Perkins could perform her past relevant work as a
loan processor and an office clerk.

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The ALJ did not ask the VE to assume the individual could perform a full range of
light work as Ms. Perkins contends. (See doc. 7-3 at R.71; doc. 10 at 12.)
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Ms. Perkins also contends that the ALJ erred in finding she could perform her past
relevant work, despite her limitations, because the VE testified, in response to counsel’s
questioning, that a person with the need for frequent breaks could not perform the jobs of
loan processor and/or office clerk. Indeed, the VE testified:
Q. [Ms. Perkins’s Counsel] . . . [S]ome of the jobs they’ve identified
as skilled, some of them are semiskilled and some are unskilled – how does the
scheduled breaks come into play?
A. [VE] Well, still, through the, as described from the Department of
Labor for the State of Alabama, you’re looking at two, 15-minute breaks – one
in the morning, one in the afternoon and then normally you’re looking at a half
hour for lunch.
Q. Okay.
A . That’s still pretty standard across the skill levels.
Q. Yeah. That applies whether it’s skilled, unskilled or –
A. It truthfully does. It’s just, the difference basically is the closeness
to the restroom, if that’s what you’re inferring.
Q. Yeah. If you have a person who has to go for bathroom breaks 40
times during an eight-hour workday, is that going to be considered excessive
breaks?
A. Well, how much time are we saying she would need for each?
Q. Like five to eight minutes each time?
A. Yeah. We’re talking close to two hours of additional breaks, above
and beyond, and that would preclude all work activity.
(Doc. 7-3 at R.73-74 [emphasis added].) However, the ALJ did not find Ms. Perkins’s
testimony regarding her need for frequent bathroom breaks to be credible; she found:
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At the hearing, the undersigned notes the claimant stated she had IC
[interstitial cystitis] and she needed to urinate 20 times in the morning and 20
times in the afternoon. There is nothing in the objective medical record to
support these subjective allegations. The claimant has not seen a urologist and
she stated that Dr. Childs treats her for all of her pelvic and urinary problems.
Dr. Childs’[s] diagnosis of IC was based upon surgical findings and the
undersigned notes that the claimant is not on any medication for urinary
frequency. Moreover, the objective medical evidence further states she has
experienced good results with her bladder problems following her surgical
procedures and urinalysis have been negative. There is no evidence of
uncontrolled urination or the need to urinate as frequently as alleged at the
hearing. While the undersigned does find her bladder leakage could be
exacerbated by heavy lifting and straining, the claimant’s limitations to light
work activities, as allowed by Dr. Childs following both surgical procedures,
would address this problem and otherwise prevent ongoing problems.
(Doc. 7-3 at R.34.) Because the ALJ did not credit Ms. Perkins’s allegations regarding her
need for frequent breaks, the court finds no error in the ALJ’s failure to rely on the VE’s
testimony that Ms. Perkins could not perform any work because of her need for frequent
bathroom breaks. “[T]he ALJ was not required to include findings in the hypothetical that
[she] had properly rejected as unsupported.” Crawford v. Comm’r Of Soc. Sec., 363 F.3d
1155, 1161 (11th Cir. 2004).
Based on the foregoing, the court finds no error based on the ALJ’s decision to rely
on the VE’s testimony that an individual with Ms. Perkins’s limitations and vocational
factors could perform the jobs of loan processor and office clerk.

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2. Appeals Council
Ms. Perkins contends that the Appeals Council erred by failing to remand her case
based on the additional evidence of her frequent bathroom breaks submitted after the ALJ’s
decision.
“[W]hen a claimant properly presents new evidence to the Appeals Council, a
reviewing court must consider whether that new evidence renders the denial of benefits
erroneous.” Ingram v. Comm’r of Soc. Sec. Admin., 496 F.3d 1253, 1262 (11th Cir. 2007).
“With a few exceptions, the claimant is allowed to present new evidence at each stage of this
administrative process.” Id. at 1261 (citing 20 C.F.R. § 404.900(b)). “The Appeals Council
must consider new, material, and chronologically relevant evidence and must review the case
if ‘the administrative law judge’s action, findings, or conclusion is contrary to the weight of
the evidence currently of record.’” Id. (quoting 20 C.F.R. § 404.970(b)). “The new evidence
is material if ‘it is relevant and probative so that there is a reasonable possibility that it would
change the administrative result.’” Watkins v. Astrue, 925 F. Supp. 2d 1257, 1263 (N.D. Ala.
2013)(quoting Hyde v. Bowen, 823 F.2d 456, 459 (11th Cir. 1987)). The new evidence “is
chronologically relevant if ‘it relates to the period on or before the date of the [ALJ’s]
hearing decision.’” Id. (quoting 20 C.F.R. § 404.970(b)).
The new evidence submitted by Ms. Perkins is her handwritten list of the times and
purposes of numerous bathroom visits on March 5-7, 2014. (Doc. 7-3 at R.15-18.) The

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ALJ’s decision is dated February 26, 2014. (Id. at R.35.) Therefore, the new evidence is not
chronologically relevant.7 The court finds no reversible error.
CONCLUSION
For the reasons set forth above, the decision of the Commissioner is due to be
affirmed. An Order affirming the decision of the Commissioner will be entered
contemporaneously with this Memorandum Opinion.
DONE this 22nd day of February, 2016.

SHARON LOVELACE BLACKBURN
SENIOR UNITED STATES DISTRICT JUDGE

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The court also notes that the evidence, Ms. Perkins’s listing of the number of times
she visited the bathroom, is cumulative of the testimony she gave and is not material as it
does not address the ALJ’s reasons for not crediting her subjective testimony.
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